This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent David D. Bennett (Bennett). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On July 24, 2006, at approximately 1:55 a.m., Officer Jacob Schwenk (Officer Schwenk) of the Isle of Palms police department observed Bennett’s vehicle make a left turn from a straight-only lane. Officer Schwenk began following Bennett’s vehicle. He observed Bennett’s vehicle go into the center lane, which was a no-passing zone, and pass another vehicle. Officer Schwenk initiated a traffic stop. As he approached Bennett’s vehicle, Officer Schwenk noticed an odor of alcohol coming from the vehicle. After obtaining Bennett’s driver’s license, registration, and proof of insurance, Officer Schwenk returned to his vehicle. He called in Bennett’s driver license number to the police department’s dispatch and discovered that Bennett’s driver’s license was suspended. Officer Schwenk returned to Bennett’s vehicle and administered the following three field sobriety tests to Bennett: (i) the Horizontal Gaze Nystagmus test; (ii) the Walk and Turn test; and (iii) the One-Leg Stand test. After administering the tests, Officer Schwenk concluded that Bennett was under the influence of alcohol. He arrested Bennett for driving under the influence (DUI) and transported him to a detention center for a DataMaster test.

At the detention center, Officer Schwenk asked Officer Kimberly Usry (Officer Usry) to administer a DataMaster test to Bennett. After Bennett refused to take the test, he was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to the DataMaster test.

Bennett subsequently filed a request for an administrative hearing to challenge the suspension pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). An administrative hearing was held on August 30, 2006. Both Officer Schwenk and Officer Usry testified at the hearing on behalf of the Department. Among other testimony she provided, Officer Usry testified as follows:

Mr. Bennett was brought to the station where he was read his implied consent rights. . . . He was read his Miranda rights, advisement of DUI implied consent, also checked to see if there was any foreign materials or anything in his mouth, then we went through the twenty-minute observation period. Mr. Bennett refused to provide a breath sample during this twenty-minute observation period.

Officer Usry also testified that, “as a result of the refusal,” Bennett “was issued a Notice of Suspension and a copy of all forms.” Bennett neither testified at the hearing nor presented any other evidence.

On September 16, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Bennett’s suspension. Specifically, the hearing officer held:

I find that Officer Schwenk did not submit any testimony or evidence to show that Respondent was lawfully arrested for driving under the influence of alcohol, such as: slurred speech, bloodshot eyes or being unsteady on his feet. In addition there was no corroborating evidence presented to show Respondent was advised of his Implied Consent Rights in writing as required by South Carolina Code of Law, Section 56-5-2950 and SLED policies and procedures. I conclude as a matter of Law that the Petitioner has not met its burden of proof.

The Department now appeals.

ISSUES ON APPEAL

1.Does this Court lack the authority to reverse the DMVH’s Final Order and Decision?

2.Did the DMVH hearing officer err when she concluded that the Department failed to meet its burden of proof with respect to establishing that Bennett’s arrest was lawful?

3.Did the DMVH hearing officer err by rescinding Bennett’s suspension on the grounds that the Department failed to demonstrate that Bennett was given the implied consent advisement in writing?

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

The license to operate a motor vehicle upon the public highways of this State is not a right, but a privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).[2] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be informed in writing that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(a) (2006).

Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). Section 56-5-2951 nevertheless grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).

In an administrative hearing held pursuant to Section 56-5-2951, the Department bears the burden of proof. See, e.g., S.C. Dep’t of Motor Vehicles v. Lavigne, 06-ALJ-21-0056-AP (January 10, 2007) (holding that the Department bears the burden of proof in a Section 56-5-2951 hearing); S.C. Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006) (same); S.C. Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP (February 9, 2007) (same); S.C. Dep’t of Motor Vehicles v. Witt, 06-ALJ-21-0630-AP (July 5, 2007) (same); see alsoSummersell, 334 S.C. at 368, 513 S.E.2d at 625 (stating, with respect to S.C. Code Ann. § 56-5-2950(e) (1991), a precursor to the current Section 56-5-2951(F), that “[o]nce the Department has made a showing as to the three elements, jurisdiction has been established”). However, once the Department establishes a prima facie case with respect to the elements set forth in Section 56-5-2951(F), the burden shifts to the motorist to present evidence to rebut the Department’s case. S.C. Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP (January 10, 2007) (explaining the application of this principle throughout the states). Thus, if the Department establishes a prima facie case and the motorist fails to present any evidence to rebut it, then judgment must go in the Department’s favor. See, e.g., Threlkeld v. Breaux Ballard Inc., 177 S.W.2d 157, 161 (Ky. 1944) (“It is the settled rule of law that once a party establishes a prima facie case, judgment will go in his favor unless the opposite party produces evidence sufficient to overcome the prima facie presumption.”); Moffitt v. Commonwealth, 434 S.E.2d 684, 687 (Va. Ct. App. 1993) (“Once the Commonwealth has established a prima facie case, it is entitled to judgment, unless the respondent goes forward with evidence that refutes an element of the Commonwealth’s case or rebuts the prima facie presumption.”).

ALC’s Authority to Reverse the DMVH’s Final Order and Decision

As an initial matter, Bennett argues that this Court does not have the authority to reverse the DMVH’s Final Order and Decision because the Department has failed to argue and, according to Bennett, “nothing in the record suggests” that substantial rights of the Department were prejudiced by the DMVH’s Final Order and Decision. I disagree.

Pursuant to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an error has caused (1) substantial rights of the appellant (2) to be prejudiced. With respect to the first requirement, the right of the Department, as a State agency, to implement the administrative suspension of a motorist who refuses to submit to chemical testing is a substantial right. The State has a strong interest in maintaining the safety of its roads,[3] and the purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[4]

In Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court explained how, with respect to the Massachusetts implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of those motorists who refuse to submit to breath testing:

First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.

Mackey, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also recognized the important function that such suspensions serve. SeeNelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and drug testing without suffering penalty, the current system of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the aforementioned cases make clear, the Department’s right to implement Bennett’s administrative suspension is a substantial right.

With regard to the second requirement, errors that affect the outcome of a case are prejudicial. See, e.g., State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error was not harmless since it “could have reasonably affected the result of the trial”). Here, the Department is arguing that both of the reasons given by the hearing officer for rescinding Bennett’s suspension are permeated with error. Therefore, if the Department is correct, then the Department was prejudiced by these errors.

For these reasons, this Court will not, as Bennett urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Lawfulness of Arrest

The Department argues that the DMVH hearing officer erred by concluding that the Department failed to sufficiently demonstrate that Bennett was lawfully arrested for DUI. As noted above, the hearing officer’s factual conclusions must be affirmed if there is evidence in the record that would allow a reasonable mind to reach the same conclusion as the hearing officer. I find that there is clearly no such evidence to support the conclusion reached in this case. Bilton, 282 S.C. 634, 321 S.E.2d 63.

The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). Probable cause for a warrantless arrest exists when the circumstances within the arresting officer’s knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested. Id. Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officer’s disposal. Id. Probable cause may be found somewhere between suspicion and sufficient evidence to convict. Thompson v. Smith, 289 S.C. 334, 337, 345 S.E.2d 500, 502 (Ct. App. 1986), overruled in part on other grounds byJones v. City of Columbia, 301 S.C. 62, 389 S.E.2d 662 (1990). In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act. Id. (emphasis in original).

In Herndon v. Morgan Mills, Inc., 246 S.C. 201, 143 S.E.2d 376 (1965), the Supreme Court examined whether the plaintiff’s death could have been caused or accelerated by the accident at issue. In reviewing the record, the Court dismissed a conclusion reached as a result of speculation and surmise when the record contained no substantive evidence to support that conclusion. Id. at 217, 143 S.E.2d at 385 (“The lack of substantial conflict in the evidence renders the question of causal connection or acceleration of death, which is ordinarily one of fact for the Commission, a question of law for decision by the Court.”). In Adams v. Rice Services, 313 S.C. 488, 443 S.E.2d 391 (1994), the Court likewise found that where there was no evidence that an employer was entitled to stop payment of a worker’s compensation claimant’s benefits, the Full Commission erred in permitting the employer to stop payments. More recently, the Supreme Court found that where there was no evidence contradicting or conflicting with a PCR petitioner’s testimony,the PCR court erred by finding the petitioner’s testimony on the issue was not credible. Jackson v. State, 342 S.C. 95, 97-98, 535 S.E.2d 926, 927 (2000).

In this case, Officer Schwenk testified, and the DMVH hearing officer found, that Officer Schwenk observed Bennett make a left turn from a straight-only lane and pass another vehicle while traveling in a no-passing zone. This testimony sufficiently demonstrated that Officer Schwenk was justified in stopping Bennett. SeeCity of Orangeburg v. Carter, 303 S.C. 290, 400 S.E.2d 140 (1991) (an officer’s observation of an improper left turn by the defendant justified routine stop). Officer Schwenk further testified, and the hearing officer found, that after stopping Bennett Officer Schwenk noticed an odor of alcohol coming from Bennett’s vehicle. Additionally, Officer Schwenk testified, and the hearing officer found, that based upon Bennett’s performance on the three field sobriety tests that Officer Schwenk administered to Bennett, Officer Schwenk determined that Bennett was under the influence of alcohol.[5] Specifically, Officer Schwenk testified that, while performing the Walk and Turn field sobriety test,[6] Bennett stumbled off of the path and failed to walk heel-to-toe. This testimony is in blatant contradiction to the hearing officer’s finding that “Officer Schwenk did not submit any testimony or evidence to show that Respondent was lawfully arrested for driving under the influence of alcohol, such as: slurred speech, bloodshot eyes or being unsteady on his feet.”

Officer Schwenk’s testimony demonstrated that Bennett’s arrest for DUI was lawful. Cf.Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474 S.E.2d 443 (Ct. App. 1996) (finding probable cause to arrest for DUI where officer observed motorist’s car swerve abruptly to the right and nearly hit median, motorist smelled of alcohol, motorist admitted to having consumed a few beers, and motorist performed poorly on a field sobriety test). Bennett did not present any evidence to rebut the evidence supporting the reason for his arrest.[7] Therefore, there is no evidence, other than “speculation and surmise,” that Officer Schwenk lacked probable cause to arrest Bennett for DUI. That speculation does not meet the substantial evidence standard to support the hearing officer’s conclusion. In other words, the only reasonable conclusion that could be reached based upon the evidence in the record is that there was probable cause to believe that Bennett was under the influence of alcohol. See 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5th ed. 1999).

Moreover, the fact that Officer Schwenk did not specifically testify that Bennett had slurred speech or bloodshot eyes did not preclude a finding of probable cause. In other words, there is certainly no requirement in South Carolina, or any other state, that an arrest for DUI must be supported by a finding of slurred speech or bloodshot eyes. Whether probable cause exists depends upon the “totality of the circumstances” ― not the existence of a particular set of facts. SeeBaccus, 367 S.C. at 49, 625 S.E.2d at 220. Our appellate courts have found probable cause to arrest for DUI in cases where there was no mention of evidence that the motorist had slurred speech or bloodshot eyes. See, e.g., Kelly, 323 S.C. 334, 474 S.E.2d 443; State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978). In this case, Officer Schwenk’s testimony regarding Bennett’s performance on the field sobriety tests demonstrated that Bennett was exhibiting signs of impairment at the time of his arrest.

For these reasons, the DMVH hearing officer’s conclusion that the Department failed to sufficiently establish that Bennett was lawfully arrested for DUI was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

Implied Consent Rights Advisement

Section 56-5-2950 is widely called the “implied consent” statute,[8] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[9] However, according to SLED Implied Consent Policy 8.12.5(D), there are actually eight different situations in which an “implied consent” test can be requested, and SLED has drafted a separate advisement for each different situation.[10] SLED has named these eight advisements as follows: (1) DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence (BUI) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage Advisement; (7) Flying Under the Influence Advisement; and (8) Shooting Under the Influence Advisement.[11] All of SLED’s implied consent advisements are set forth on forms that are provided to law enforcement agencies by SLED.[12] Of the eight different implied consent advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950. See Cole & Huff, supra, at 341 (setting forth copy of DUI Advisement form).

In this case, the Department argues that the DMVH hearing officer erred by rescinding Bennett’s suspension on the grounds that there was no corroborating evidence presented to show that Bennett was advised in writing of his implied consent rights. Specifically, the Department contends that Officer Usry’s testimony sufficiently established that Bennett was orally advised of his implied consent rights prior to his refusal, and that, therefore, any failure by Officer Usry to timely advise Bennett in writing of his implied consent rights did not warrant rescission of Bennett’s suspension since Bennett failed to demonstrate prejudice. In making this argument, the Department cites Taylor, 368 S.C. 33, 627 S.E.2d 751. Bennett, however, argues that the Department did not sufficiently establish that he was advised, in any fashion, of “the rights enumerated under Code §56-5-2950” and that Taylor is therefore inapplicable to this case.

In this case, Officer Usry specifically testified that she read Bennett the “DUI implied consent” advisement, and the DMVH hearing officer expressly found that “Officer Usry read the Implied Consent Advisement to Respondent.” In addition, Officer Usry testified — and the DMVH hearing officer found — that Officer Usry was a certified DataMaster operator. Officer Usry’s testimony was not contradicted, and there is nothing in the record that is remotely inconsistent with it. Moreover, Officer Usry was neither cross-examined regarding this testimony nor otherwise impeached as a witness.

Officer Usry’s testimony was clearly sufficient to show that Bennett was orally advised of the rights enumerated in Section 56-5-2950. The “DUI implied consent” advisement that Officer Usry testified that she read to Bennett contains the rights enumerated in Section 56-5-2950. See Cole & Huff, supra, at 341. Additionally, because Officer Usry is a certified DataMaster operator, it can be assumed, since there is no evidence to the contrary, that she read Bennett all of the rights set forth in the DUI implied consent advisement. See, e.g., Parker, 271 S.C. at 163-64, 245 S.E.2d at 906 (holding that a breath test operator’s testimony that he had been certified by the South Carolina Law Enforcement Division constituted prima facie evidence that the breath test was administered by a qualified person in the proper manner).[13]

For these reasons, I conclude that the Department sufficiently established that Bennett was orally advised of the rights enumerated in Section 56-5-2950. Having made this conclusion, I will now discuss the applicability of the Taylor decision to the present case.

b. Taylor Decision

In Taylor, a motorist who was arrested for DUI had his driver’s license suspended pursuant to Section 56-5-2951(A) after he refused to submit to a blood test. Prior to the motorist’s refusal, the arresting officer read out loud to the motorist a copy of the implied consent form, but did not provide the motorist with a tangible copy of the form. The motorist subsequently requested a hearing to challenge the suspension. The hearing officer sustained the suspension of the motorist’s license, but the circuit court reversed. On further appeal to the Court of Appeals, the Court of Appeals reversed the circuit court, relying on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002).[14] The Taylor court interpreted the Huntley decision as follows:

[In Huntley], the supreme court reversed the suppression of the breathalyzer test results because the defendant was not prejudiced by the statutory violation committed by the breathalyzer operator. Consequently, the Huntley decision dictates that a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to this section.

Taylor, 368 S.C. at 38, 627 S.E.2d at 754. The Court of Appeals then noted that the motorist did not argue that he was not advised of his implied consent rights, or that he would have provided a blood sample if he had been advised of his implied consent rights in writing. Id. It therefore concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide him with a tangible copy of the implied consent advisement form. Id. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing officer’s order. Id.

Here, as discussed above, the record demonstrates that Bennett was orally advised of his implied consent rights prior to refusing to submit to the DataMaster test. Therefore, pursuant to Taylor, any failure by Officer Usry to timely advise Bennett in writing of his implied consent rights did not warrant rescission of Bennett’s suspension since Bennett neither argued nor presented any evidence to show that he suffered prejudice as a result of such failure.

For these reasons, the DMVH’s Final Order and Decision must be reversed.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.

[4]Kerr, 330 S.C. at 150, 498 S.E.2d at 221. As South Carolina courts have noted, driving while under the influence of alcohol or drugs poses a significant risk to others. SeeState v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003).

[5] In connection with this testimony, Officer Schwenk also testified that he had completed an advanced DUI detection class prior to Bennett’s arrest.

[6] The Walk and Turn test requires the motorist to take nine heel-to-toe steps down a straight line, to turn around, and then to take nine heel-to-toe steps back, while counting each step out loud. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 431 (Candice Koopman Lockman ed., 4th ed. 2005).

[7]McCormick referred to the consequence of not responding to the burden of producing evidence as the risk of remaining silent. McCormick § 338. That risk and ultimate penalty seems quite applicable in this case.

[12]Id.; see also Cole & Huff, supra, at 236, 341-42 (setting forth copies of the different implied consent advisement forms).

[13] As SLED policy makes clear, one portion of the DataMaster test administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1), available at http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200611018125.pdf.

[14]Huntley involved the prosecution of a motorist for DUI. The trial court in the case had suppressed the motorist’s breathalyzer test results because the breathalyzer operator tested the breathalyzer machine with a simulator test solution containing an alcohol level of .10% rather than the .08% mandated by statute. On appeal, the South Carolina Supreme Court reasoned that, because the simulator test merely determined the reliability of the breathalyzer machine’s results, it was “irrelevant whether the simulator test [was operated] using an alcohol level of .10 or .08 percent.” Huntley, 349 S.C. at 5, 562 S.E.2d. at 474. The court then concluded:

Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by [Section 56-5-2950], Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable. Consequently, the trial judge erred by excluding Huntley’s breathalyzer test results.

Id. at 6, 562 S.E.2d. at 474. Shortly after the Huntley decision was issued, S.C. Code Ann. § 56-5-2950(e) was enacted “to provide additional guidance to our trial courts on when to exclude test results due to the failure to comply with [Section 56-5-2950]’s mandates . . .” City of Florence v. Jordan, 362 S.C. 227, 232, 607 S.E.2d 86, 89 (Ct. App. 2004); see also Act No. 61, § 6, 2003 S.C. Acts 689. Section 56-5-2950(e) provides that “[t]he failure to follow . . . the provisions of this section . . . shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” S.C. Code Ann. § 56-5-2950(e) (2006).